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Focus on Regulation

The Polar Bear Rule: FWS Proposes Special Rule for Ursus Maritimus

In May 2008, the Bush administration listed the polar bear as a threatened species under the Endangered Species Act (ESA). On December 16, 2008, the U.S. Fish and Wildlife Service (FWS) issued an interim special rule for management of the polar bear under § 4(d) of the ESA.  Both the listing and interim special rule were challenged by lawsuits that resulted in a 2011 decision by the U.S. District Court for the District of Columbia that: (a) upheld FWS’s decision to list the polar bear; and (b) remanded the special rule to FWS for an environmental assessment under the National Environmental Policy Act (NEPA). 

On April 16, 2012, the FWS announced a new proposed special rule for the polar bear under § 4(d) of the ESA.  The proposed § 4(d) special rule would, for the most part, adopt the existing conservation regulatory requirements of the Marine Mammal Protection Act (MMPA) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) that already protect the species.  Specifically, FWS and the Department of the Interior would continue to rely primarily on the provisions of the MMPA to govern on-site management of activities, such as oil and gas exploration and development projects, within the polar bear’s range.  Under the proposed § 4(d) special rule, when an activity is not already covered by an MMPA or CITES authorization or exemption, then the general protections of the ESA would apply.  The proposed special rule, however, would provide that any incidental take that results from activities that occur outside of the polar bear’s range would not be a prohibited act under the ESA.  Comments on the proposed special rule and the alternatives to be considered in the environmental assessment are due by June 18, 2012.

Environmental groups are unhappy with the proposed rule, arguing that it limits ESA protections by excluding activities that occur outside the polar bear’s range, such as greenhouse gas emissions. In its press release on the proposed special rule, the Center for Biological Diversity asserts polar bears are “endangered precisely because of activities that occur outside the Arctic—namely the emission of greenhouse gases and resulting warming that is leading to the rapid disappearance of summer sea ice.”  While FWS estimates a final rule by the end of 2012, new lawsuits are anticipated.